Duncan Lewis


Asylum, Detention/ Fast Track

Managed Migration, Public Law

Much of UKBA’s policies in corporate immigration were unlawful said Supreme Court

Date: (25 July 2012)    |    

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A Supreme Court ruling last week, that the UK Border Agency policies on corporate immigration were unlawful has led to a confusion over the legal framework for UK immigration policy which seems to be in disarray.

In an unanimous decision the court ruled, that much of the UKBA’s practice and policies involving corporate immigration were unlawful because they were never put before the parliament for scrutiny as is required by the Immigration Act 1971 for incorporation into the rules rather they were being simply set out in guidance and other documents, which representation would be unlawful.
It would mean that the current UKBA requirements for the points based system can no longer be relied upon. Now the requirement that only British citizens earning at least £18,600 a year could join by their foreign spouses will be open to challenge.
Hina Majid, policy director at the Joint Council for the Welfare of Immigrants (JCWI), the lead party in the case, welcomed the judgment of the Supreme Court which he said would mean that the UKBA’s requirements, as set out in the codes of practice and the standard occupational classification scheme including salary levels and skill levels, could not be relied upon for refusal of an employer’s application for a work permit, or for visa applications by employees.
The judgment, however, has wider implications given the heavy reliance of the points-based system on policy outside of the rules which has not been laid before parliament.
Shahram Taghavi, deputy head of immigration firm which acted for the JCWI, said that the ruling would have a deep impact upon the current corporate immigration system, and effectively represents a wholesale collapse of the legal framework for immigration policy in the UK.
This decision was going to echo widely, due to the sheer number of cases on related matters winding their way through the courts at present. This could have been avoided if the Home Office and secretary of state had chosen to pursue changes to immigration in the proper manner, through parliamentary review and scrutiny.
The message was clear to the UKBA and the Home Office that the corporate immigration system had become far too complicated and unmanageable and any circumventing of the parliamentary oversight was rejected by the court he said.
A wholesale revamp of the system was now the only way forward, incorporating all mandatory requirements into the Immigration Rules. Only then will both the clarity and legality of the UK’s immigration policies be assured.